Neha Thakker, PT, DAB CR5670 (2020)

DECISION

The effective date of the reassignment of Medicare benefits of Petitioner, Neha Thakker, PT, is August 9, 2019, with retrospective billing privileges authorized beginning July 10, 2019.

I.  Background and Procedural History

Petitioner is a physical therapist.  See Request for Hearing; Centers for Medicare and Medicaid Services (CMS) Ex. 3 at 4.  On August 9, 2019, Novitas Solutions (Novitas), a Medicare administrative contractor, received Petitioner’s Form CMS-855R enrollment application to reassign her benefits to Elite Spine and Sports Care of Totowa.  CMS Ex. 1 at 8, 10, 14.  On August 28, 2019, Novitas approved Petitioner’s reassignment of benefits, effective July 10, 2019.1   CMS Ex. 2 at 1-2.

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On October 28, 2019, Petitioner sent a letter to Novitas, which it received that same day, in which she requested reconsideration of the effective date assigned for her reassignment of benefits.  CMS Ex. 3 at 4; see CMS Ex. 4 at 2.  Petitioner explained that she “began employment . . .  on June 24, 2019 and was added to [the practice’s] group NPI,” and “[t]here was a provider over lap [sic] as she was replacing another physical therapist in [the] practice.”  CMS Ex. 3 at 4.

Novitas issued a reconsidered determination on January 16, 2020, explaining that “[b]ased on the CMS-855R reassignment of benefits application being received on August 9, 2019, the effective date of Medicare billing privileges is August 9, 2019.”  CMS Ex. 4 at 1.  Novitas further explained that “[t]he requirements for retrospective billing were met as required by 42 [C.F.R. § ]424.521(a) and a Medicare effective date of billing of July 10, 2019 was provided and set up correctly based on the effective date regulations stated above.”  CMS Ex. 4 at 2-3.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on January 21, 2020.2   Thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre-hearing brief and motion for summary judgment, along with four proposed exhibits (CMS Exs. 1-4).  Petitioner filed a response that I construe as a brief (P. Br.).3

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Neither party has submitted written direct testimony, as addressed in sections 11 through 13 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.4

II.  Issue

Whether the effective date of Petitioner’s reassigned Medicare benefits is August 9, 2019, with retrospective billing privileges authorized beginning July 10, 2019.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis5

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s reassignment of benefits is August 9, 2019, which is the date of receipt of the Medicare enrollment application that Novitas was able to process to approval, and retrospective billing privileges are authorized beginning July 10, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

As a physical therapist, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 3 at 4; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners who are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.” 

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42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . , CMS enrolls the provider or supplier into the Medicare program.”  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements for suppliers).  When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  See Alexander C. Gatzimos, MD, JD, LLC,DAB No. 2730 at 2 (2016).  “The effective date of a physician’s or physician organization’s enrollment in Medicare is ‘the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.’”  Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d) (addressing the effective date of enrollment, for inter alia, physicians and non-physician practitioners); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) (“the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.”).

The Departmental Appeals Board (DAB) has explained that “[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation” at 42 C.F.R. § 424.520(d).  Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).  Petitioner argues that she commenced employment with her current employer on June 24, 2019, and should be granted an effective date of June 24, 2019, for the reassignment of her Medicare benefits.  Request for Hearing; CMS Ex. 3 at 4; P. Br. (listing an effective date of June 24, 2019).  Petitioner did not submit an application to reassign benefits to her new practice until August 9, 2019.  CMS Ex. 1 at 8, 10, 14.  Therefore, the earliest possible effective date for Petitioner’s reassignment of benefits is August 9, 2019, pursuant to 42 C.F.R. § 424.520(d), because that is the date she submitted her application to reassign her benefits.  Billing privileges are authorized beginning up to 30 days earlier pursuant to 42 C.F.R. § 424.521(a)(1), and therefore, Petitioner’s billing privileges are effective on the earliest possible date allowed by law, July 10, 2019.  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s reassignment of benefits is August 9, 2019, with retrospective billing privileges beginning July 10, 2019.  See Lakhanpal, DAB No. 2951 at 6.

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

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V.  Conclusion

For the foregoing reasons, I uphold the August 9, 2019 effective date of Petitioner’s reassigned billing privileges, with retrospective billing authorized beginning July 10, 2019.

1. Although an effective date of a reassignment of benefits is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 30 days prior to the effective date if “circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).  Novitas used imprecise language when it stated that it had assigned a July 10, 2019 effective date for Petitioner’s reassignment of benefits.  In actuality, Novitas assigned an August 9, 2019 effective date for the reassignment of benefits, based on the receipt date of the application, pursuant to 42 C.F.R. § 424.520(d), and it authorized retrospective billing privileges beginning 30 days earlier, on July 10, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
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2. Petitioner’s request for hearing is identical to her request for reconsideration; both documents are dated October 28, 2019.  Request for Hearing; CMS Ex. 3 at 4.
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3. Petitioner filed her request for hearing via DAB E-File, and was required to submit all filings through DAB E-File.  See Civil Remedies Division Procedures § 6.  Nonetheless, Petitioner submitted documents by mail that were received on or about March 4, 2020, and on March 5, 2020, after discussing the matter with Petitioner by telephone, a Civil Remedies Division attorney returned those documents with a cover letter explaining that, “[i]f you want these documents to be a part of the record . . . , you[] must file them through the DAB E-File system . . . .”  DAB E-File Dkt. #5.  On March 9, 2020, following CMS’s filing of its pre-hearing exchange and prior to her deadline to file her pre-hearing exchange, Petitioner filed, via DAB E-File, a document with the file name of “Provider_Demographic_Neha.docx,” which is a document containing biographical information.  DAB E-File Dkt. #6.  Petitioner’s filing includes the following statement:  “Effective date: 06/24/2019.”  Id.  On May 22, 2020, I issued an order in which I offered Petitioner an opportunity to file a substitute pre-hearing exchange. Petitioner did not file a response to this order.
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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5. Findings of fact and conclusions of law are in bold and italics.
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